390 MEDICAL JURISPRUDENCE Marriage being regarded as a contract by the Divorce Act, 1869, may be declared null and void, if it can be proved clearly and convincingly that one of the parties was, by reason of unsoundness of mind at the time of the marriage, unable to understand the nature and responsibilities of the con- tract of marriage. Unsoundness of mind developing subsequent to the marriage is no ground for divorce. Mere weakness and imbecility of mind, eccentricity and partial dementia are not in themselves sufficient to avoid the marriage contract, but the mental defect or derangement must be such as prevents one party from comprehending the nature of the contract of marriage and from giving to it his or her free and intelligent consent. In an appeal by Mst. Titli alias Tereza18 from the decision of Mr. Young giving a decree of nullity of marriage at the instance of a European called Alfred Robert Jones, a resident of Bhim Tal in Naini Tal district, who had prayed that his marriage with the appellant be declared nuH and void, one of the grounds being that he had been deficient in mentality since his very childhood and had to be looked after by his relations throughout his Hfe, it was held that the marriage could not be declared as a nullity, as it was impossible to hold either that Mr. Jones was an idiot within the meaning of section 19 of the Divorce Act or that he was incapable of giving consent and did not voluntarily consent owing to force or fraud having been practised upon him after taking advantage of any imbecility of his mind. According to his own statement he understood what he was doing and realized what marriage meant. Evidence.—Under section 118 of the Indian Evidence Act (Appendix II) a lunatic is not competent to give evidence, if he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them. However, he is competent to give evidence, if an insane person is in the stage of a lucid interval, or if he is suffering from monomania, though it rests with the judge and jury to decide whether or not they should give credence to it. Consent.—Section 90 of the Indian Penal Code provides that consent to certain acts is not valid, if such consent is given by a person who, " from unsoundness of mind or intoxication, is unable to understand the nature and consequence of that to which he gives his consent". The question of invalidity of consent may arise in cases of rape, causing death or grievous hurt3 and abetment of suicide. Consent to sexual intercourse given by a woman of imbecile or unsound mind is of no avail, and the act amounts to rape. Exception 5 of section 300 10 of the Indian Penal Code provides that 46 culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent". Whereas section 87 19 of the Indian Penal Code provides that " an act not intended and not known to be likely to cause death or grievous hurt is not an, offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm ". Abetment of suicide under section 30619 of the Indian Penal Code is punishable "with imprisonment of either description for a term which may extend to ten years and with fine ", while abetment of suicide of " a person under eighteen years of age, an insane person, a delirious person, an idiot, or a person in a state of intoxication " is punishable under section 30519 of the Indian Penal Code " with death or transportation for life, or 'imprison- ment for a term not exceeding ten years, and with fine ". 18. Leader, Nov. 1, 1933. 19. Vide Appendix IV.